Sr. No. 69 v. Krishna Devi

Judgment

1. The petitioner has filed the instant revision petition challenging order dated

14.09.2018 and 20.01.2020 passed by the learned Judicial Magistrate, 1st Class, Kalakote in a petition filed by respondent No.1 against the petitioner under Section 488 of the J&K Cr.P.C. Vide impugned order dated

30.04.2019 an amount of Rs.4000/- per month has been awarded as maintenance in favour of respondent No.1 and against the petitioner whereas vide impugned order dated 20.01.2020 learned Judicial Magistrate, 1st Class, Kalakote (hereinafter referred to as ‘trial Magistrate’) has directed attachment of the movable property of the petitioner.

2. It appears that respondent No. 1 filed a petition under Section 488 of the J&K Cr.P.C against the petitioner herein before the learned trial Magistrate seeking maintenance in her favour. In the said petition, respondent No.1 claimed that she is legally wedded wife of petitioner herein with whom she 2 Crl R No. 06/2020 had entered into wedlock in the year 1970. It was further averred by respondent No.1 in her petition that out of the said wedlock one child was born and that relations between the parties remained cordial for about 12 years. However, thereafter the petitioner started harassing respondent No.1 and made demands of dowry from her. It has been averred that in the year 1980, the petitioner contracted second marriage without obtaining divorce from respondent No.1, who was turned out of her matrimonial home. On account of this, respondent No.1, who is a non-earning person, was unable to maintain herself. She approached the petitioner a number of times and sought maintenance from him but without any success. This resulted in filing of the petition under Section 488 of the J&K Cr.P.C before the learned trial Magistrate. It appears that summons were issued to the petitioner and the same were served upon him but he chose not to appear before the learned trial Magistrate. As a consequence of this, on 03.08.2018, the learned trial Magistrate decided to proceed ex-parte against the petitioner and directed respondent No.1 to lead evidence in ex-parte. Besides examining herself as witness, respondent No.1 also examined PWs- Karnail Singh and Kabla Singh as witnesses in support of her case. After analysing the evidence led by respondent No.1, the learned trial Magistrate found that marriage between the petitioner and respondent No.1 is subsisting and that the petitioner has neglected to maintain respondent No.1. It was also found that the petitioner is a retired army personnel and has means to maintain his wife-respondent No.1. Accordingly, an amount of Rs.4000/- per month was awarded as maintenance in favour of respondent No.1 against the

4. petitioner.

The petitioner-husband has challenged the impugned order passed by the learned Magistrate by way of present revision petition on the grounds that he has divorced respondent No.1 and the same is recorded in Panchayatnama dated 08.07.1972. It has been submitted that after the divorce between the parties had taken place, the petitioner joined Indian Army in the year 1974 and in the year 1980 he entered into wedlock with one Pusho Devi. It has been claimed that out of said wedlock petitioner has four daughters and one 3 Crl R No. 06/2020 son. It has been submitted that in the year 1984, respondent No.1 lodged a complaint against the petitioner in army headquarter as a result of which the petitioner was discharged from service on 31.08.1987 whereafter a deed of mutual divorce was executed between the parties on 27.09.1989. It has been submitted that the petitioner challenged his discharge order by way of writ petition bearing SWP No. 2240/1998 and vide judgment dated 03.12.2001 his discharge from service was quashed. It has been contended that custom of divorce in the manner in which divorce between the petitioner and respondent No.1 had taken place was verified by Deputy Commissioner, Rajouri and a report dated 03.12.2001 was furnished by the Tehsildar concerned in this regard.

6. It has been contended that the petitioner was never served with the

8. summons. It is being claimed that signatures of petitioner appearing on the summons are forged and do not match with the signatures of the petitioner. It has also been claimed that there are many over-writings in the minutes of proceedings which creates doubt about the genuineness of these proceedings. It has been contended that because respondent No.1 has been divorced by the petitioner, as such, she is not entitled to any maintenance. I have heard learned counsel for the parties and perused the record of the case including the record of the trial Magistrate. The petitioner has invoked revisional jurisdiction of this Court to assail the order of the learned trial Magistrate. Section 435 of the J&K Cr.P.C, which is applicable to the present case, vests power with the High Court or Sessions Judge to call for and examine the record of any proceeding before the inferior criminal court so as to satisfy itself as to the correctness, legality or propriety of any finding, sentence and order recorded or passed and as to the regularity of any proceedings of such inferior court. From this, it is clear that while exercising the powers of revision, the High Court or Court of Sessions has to only examine the record of the inferior court so as to satisfy itself with regard to legality etc. of the order of the inferior court. Any document or material which is not part of record of the inferior court cannot be considered by the revisional court at the time of deciding the revision petition. 4 Crl R No. 06/2020

9. In view of the above settled position of law, the contention of petitioner that he had divorced respondent No.1 way back in the year 1974 cannot be considered by this Court in these proceedings because the aforesaid version of petitioner was not available before the learned trial Magistrate while deciding the petition under Section 488 of the J&K Cr.P.C. This is so because admittedly the petitioner did not appear and participate in the proceedings before the trial Magistrate, therefore, there was no occasion for the learned trial Magistrate to consider this aspect of the matter while deciding the petition under Section 488 of the J&K Cr.P.C. Thus, no fault can be found in the impugned order passed by the learned trial Magistrate for not having considering the plea of divorce which has been set up by the petitioner for the first time before this Court.

10. The second ground urged by the learned counsel for the petitioner is that the petitioner was never served with the summons and the signatures appearing on the summons do not pertain to him. In this regard, it has to be noted that the trial court record shows that summons were issued against the petitioner, firstly, on 30.05.2018 and on reverse of this summons receipt signed by petitioner is appended. Thereafter another summons has been issued on

03.07.2018 and on this summons also receipt of petitioner bearing his signatures is appended on the reverse. The petitioner has disputed his signatures on the summons. Learned trial Magistrate has noted in the impugned order that statement of the process server was recorded in proof of his report. In the face of this, there was no occasion for the trial Magistrate to doubt the authenticity of signatures of the petitioner appearing on the reverse of the summons. If at all, the petitioner desires to establish that the signatures appearing on the summons are forged in nature he could have applied for setting aside of the ex-parte proceedings/ex-parte final order by resorting to the remedy available under proviso to sub-section (6) of Section 488 of the J&K Cr.P.C and participated in the proceedings whereafter he could have subjected the process server to cross-examination and produced his own evidence to show that signatures appearing on the summons do not pertain to him. Instead of doing so, the petitioner has rushed to this Court by filing the instant revision petition. It is not within the competence of this Court in 5 Crl R No. 06/2020 exercise of its revisional jurisdiction to hold a mini trial and record evidence to test the veracity of the plea projected by petitioner about the forged nature of his signatures on the summons. The argument advanced by learned counsel for the petitioner in this regard cannot be accepted.

11. A perusal of the ex-parte evidence led by the respondent No.1 during the course of trial of the case would reveal that she has succeeded in establishing that marriage between her and the petitioner was subsisting and that the petitioner had neglected to maintain her. She has also succeeded in showing that she is unable to maintain herself and that the petitioner is a man of means. Therefore, the learned trial Magistrate has rightly on the basis of the material available before her come to the conclusion that the petitioner is liable to pay maintenance @ Rs.4000/- per month to respondent No.1.

12. In view of the foregoing discussion, the learned trial Magistrate has not committed any illegality or material irregularity while passing the impugned order. Once the petitioner failed to pay the amount of maintenance as was directed by the learned Magistrate in terms of order dated 14.09.2018 she had no option but to issue warrants of attachment against the petitioner which she did in terms of impugned order dated 20.01.2020. It is not the case of the petitioner that he has paid any maintenance to the petitioner pursuant to order dated 14.09.2018, therefore, order dated 20.01.2020 also does not call for any interference.

13. For the foregoing reasons, I do not find any merit in the petition. The same is, accordingly, dismissed. (SANJAY DHAR) JUDGE Jammu : 25.04.2024 Pawan Chopra Whether the Judgment is speaking: Yes Whether the Judgment is reportable: Yes Pawan Chopra 2024.04.25 16:01 I attest to the accuracy and integrity of this document